Case :- CRIMINAL MISC. BAIL APPLICATION No. - 49218 of 2018 Applicant :- Shahjad Opposite Party :- State Of U.P. Counsel for Applicant :- Shujauddin Counsel for Opposite Party :- G.A.
Hon'ble J.J. Munir,J.
This is an application for bail on behalf of the applicant Shahjad in Case Crime No.1094 of 2018, under Sections 363, 366, 376 IPC, and Section 3/4 POCSO Act, Police Station Muradnagar, District Ghaziabad.
Heard Sri Shujauddin, learned counsel for the applicant and Sri J.B. Singh, learned AGA along with Sri Avanish Shukla, learned counsel appearing on behalf of the State.
The submission of the learned counsel for the applicant is that the prosecutrix, on a medico legal estimation of her age, determined by the Chief Medical Officer, Ghaziabad based on an ossification test, has been opined vide his certificate dated 31.7.2018 to be aged about 16 years. It is submitted that giving the usual allowance of two years, or even one, to the medically estimated age to the benefit of the accused, she would reckon to be a major. It is submitted that the provisions of the POCSO Act would, therefore, not be attracted. Learned counsel for the applicant has invited the attention of the Court to the statement of the prosecutrix under Section 164 Cr.P.C., which is clearly exculpatory and shows that the prosecutrix went along with the applicant, a girl and a boy to Agra where the two had consensual sex and stayed together. It is submitted that looking to the stand of the prosecutrix, that is clearly exculpatory, there is no justification to detain the applicant, pending trial.
Considering the overall facts and circumstances of the case, the gravity of the offence, the nature of allegations, the severity of punishment, and, in particular, the fact that the prosecutrix is prima facie a major and the statement under Section 164 Cr.P.C., is absolutely exculpatory, but without expressing any opinion on merits, this Court finds it to be a fit case for bail.
The bail application, accordingly, stands allowed.
Let the applicant Shahjad in Case Crime No.1094 of 2018, under Sections 363, 366, 376 IPC, and Section 3/4 POCSO Act, Police Station Muradnagar, District Ghaziabad be released on bail on executing his personal bond and furnishing two sureties each in the like amount to the satisfaction of the court concerned with the following conditions:
i) The applicant shall not tamper with the prosecution evidence.
ii) The applicant shall not threaten or harass the prosecution witnesses.
iii) The applicant shall appear on the date fixed by the trial court.
iv) The applicant shall not commit an offence similar to the offence of which the applicant is accused, or suspected of the commission.
v) The applicant shall not directly or indirectly make any inducement, threat or promise to any person acquainted with the facts of the case so as to dissuade such person from disclosing facts to the Court or to any police officer or tamper with the evidence.
the complainant would be free to move an application for cancellation of bail before this Court.
Order Date :- 20.12.2018 NSC